F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A M I E K I R

K P A T R I C K , individually
, and as the natural father and leg a l
g uardian of B .W

. , a minor,

Plaintiff-Appellant
,

v

.

C O U N T Y O F W A S H O E ; A M Y R E Y N O L D S , W CDSS social worker; E L L E N W I L C O X , W CDSS social worker; L I

N D A K E N N E D Y , W CDSS social worker, Defendants-Appellees. N o. 12-15080

D.C. No. 3:09-cv-00600- ECR-VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Edward C. Reed, J r ., District J udg e, Presiding

Arg ued and Submitted En B anc J une 22, 2016

San F rancisco, California

F iled December 9, 2016

B e fore: Sidney

R. Thomas, Chief J udg e, and Alex Koz inski, Diarmuid F . O’Scannlain, Ronald M. Gould, J ohnnie B . Rawlinson, Carlos T. B ea, Mary H. Murg uia, Morg an B . Christen, Paul J . W atford, Andrew D. Hurwitz
, and Michelle T. F riedland, Circuit J udg es.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 2

Opinion by J udg e Murg uia; Concurrence by

J udg e Christen; Partial Concurrence and Partial Dissent by

J udg e F riedland; Dissent by

J udg e Koz inski

SUMMARY *

Civil Rights

The en banc court affirmed in p art a n d r e v e r sed in part the district court’s summary jud gm e n t and remanded in a 42 U.S.C. § 1983 action ag a inst the County o f W ashoe a nd County social workers alleg ing v iolations of the F o urth a nd F ourteenth Amendment arising from t h e warrantless removal of plaintiff’s biolog ical two-day old d aug hter from the custody

of her mother.

The en banc court affirmed the district court’s g r ant o f
summary judg ment to the defendants on plaintiff’s claim that they violated his F ourteenth Amendment rig h ts by seiz ing the child without due process b ecause plaintiff had no enforceable parental rig

hts at the time of her removal.

The e n banc court affi r m e d the district court’s g r ant o f
summary judg ment to the s o c ial workers on the d a ug hter’s F ourth Amendment claim. Although t he social workers should have obtained a w arrant, t h e i r c o n s titutional oblig ation

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 3

to do so was not clearly

established, and they

were therefore entitled to qualified immunity on this claim.

The en banc court reve rsed the district court’s summary judg ment and remanded o n the daug h t e r ’s claim ag ainst W a shoe County because plaintiff presented sufficient evidence to raise a g enuine issue o f material f a c t reg arding whether the County maintained a policy of unconstitutionally seiz ing children in non-ex ig ent circumstances.

Concurring
, J u dg e Christen, joined by J udg e Hurwitz
, ag reed with the results reached b y the majority but wrote separately to address what the court described as the unlikely possibility t h a t the child’s mother mig ht unex pectedly abscond with the child.

Concurring in part a

nd dissenting in part, J udg e F r i edland, joined by Chief J udg e Thomas, ag reed w i t h the majority ’s opinion as to municipal liability but d i s sented from its affirmance of summary judg ment on the claim a g a i n s t the individual defendants. I n J udg e F rie d l a n d ’s view, qualified immunity should be denied and summary judg ment entered for plaintiff on the F ourth Amendment claim.

Dissenting in part, J udg e K o z inski, joined by J udg e s O’Scannlain, Rawlinson and B ea, and by J udg e W atford with respect to Part 2, ag reed that the social workers were entitled
to qualified immunity and joined that part of the opinion. B ut J udg e Koz i n s k i could not ag ree that the social workers committed a constitutional violation, nor that th e C ounty could be liable for a p olicy of unconstitutional conduct under Monell v. Dep’t of Soc. Servs. of N.Y

.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 4

COUNSEL

David J

. B eauvais ( arg ued), Oakland, California ; J effrey F riedman (arg

u ed) and W i l l iam R. K endall, Reno, N evada; for Plaintiff-Appellant.

Herbert B

. K aplan (arg u ed), Deputy District Attorney ; Richar d A. Gammick, District Attorney ; Reno, Nevada; for Defendant-Appellee County of W a shoe.

B rian M. B rown (arg

u e d ) and Kevin A. Pick, Thorndal Armstro n g D e lk B alkenbush & Eising er, Reno, Nevada, for Defendants-Appellees Amy Rey nolds, Ellen W ilcox
, a

nd L inda Kennedy

.

OP INION

MURGUI A, Circuit J udg e:

This appeal arises f

rom W a shoe County social workers’ warrantless removal of a two-day -old c h ild from the c ustody of h e r mother, who had a history of d rug abuse and whose
two o ther c hildren had been previously placed in the care o f the W ashoe County Department of Social Services (“DSS”). The b iolog ical fat h e r subsequently broug ht suit under 42 U.S.C. § 1983 a g ainst the social workers and the County
, claiming the removal of h is daug hter violated the F ourth a nd F ourteenth Amendments. W e have jurisdiction u n der 2 8 U

. S.C. § 1291, and we a ffirm in p art the district court’ s g rant of summary judg ment in the defendants’ favor, reverse in part, and remand for further proceeding s.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 5

BACK G ROUND

The following facts are n o t in d ispute. On J uly 15, 2008, Rachel W hitworth g ave b i r t h to a daug hter, B .W
., 1 via

cesarean section at a ho s p ital in Reno, Nevada. B .W

. was born five weeks premature

. W h i tworth admitted to nursing staff t h at she used methamphetamine throug hout her
preg n ancy , including a s rec ently as two day s prior. B

. W. tested p ositi v e f

o r methamphetamine at birth. At the time, W h itworth was unemploy ed a nd living with a friend. S he had rec e n t l y self-admitted to a drug rehabilitation prog ram but left after three day

s.

W h itworth in f

o r m e d the hospital that she had two other children w ho were a l r e a d y in the custody of DSS, a nd volunteered the name of the social worker manag ing their case, Chondra I

thurralde. After B .W

. was born, the hospital contacted I thurralde, w ho noted that a p er manent plan to terminate W hitworth’s parental rig hts for her o t h e r children had been approved b y a court due to her f a ilure to comply with the DSS case plan, h er lack of appropriate h ousing
, a nd her demonstrated inability to care for her children. I thurralde also advised placing a protective hold on B .W

. to prevent her from being discharg ed. The hospital ty pica lly honors DSS hold req u e s ts as a courtesy , but it is not leg ally oblig ated to do so. The hold did not prevent W hitworth from interacting with B .W

. while they were in the hospital tog e t h e r

. B

. W. remained in the room with W hitworth, who failed to feed the infant on schedule and to chang e her diapers.

1 T h e C o u rt ref

ers to B .W
., a m in o r, o n l y b y h er in itials to p ro tect h er p riv acy

.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 6

The nex t day
, I thurralde visi ted the hospital with DSS social worker Ellen W ilcox

. W ilcox interviewed W hitworth,

a n d informed her of the hold and that a protective cust o d y hearing had been scheduled for the following day . Until the hearing
, D SS p lanned to place B

. W. in the same foster home

as her two h alf-sibling s. W ilcox ’s supervisor, L inda Kennedy
, directed W ilcox to take B

. W

. w hen the hospital released her. On J uly 17, 2008, the hospital discharg ed twoday -old B .W

. into D SS’s care. DSS did not attempt to obtain a warrant before assuming custody of B .W

.

On J uly 18, the family d ivision o f N evada’s Second J udicial D istrict C ourt held a protective custody hearing at which W hitworth participated b y p h one from the hospital. The court determined that B .W

. should remai n in protective custody d

ue to W hitworth’s ongo i n g drug use, finding reasonable c ause to believe that continuation in W h itworth’s

care w as contrary to B .W .’s w elfare. F o llowing the hearing
, W h itworth made no contact with her attorne y o r D S S

. On J uly 28, 2008, DSS filed a petition a lleg i n g that B .W

. was a child in need of protection. W hitworth failed to attend any o f the subsequent adjudicatory or d i spositional hearing s. DSS attempted to locate W hitworth but was unable to find her.

P l aintiff-Appellant J amie Kirkpatrick was present at the hospital when W hitworth g ave birth to B .W
., althoug h he did
not know at the time w hether he was B .W .’s biolog ical f ather,

nor did he sig n an affidavit of paternity

. Kirkpatr i ck first learned of D S S ’ s involvement soon after W ilcox took c ustody of B

. W

. on J uly 17, 2008. He left his contact information with W ilcox f

or the purpose of scheduling a paternity test to determine whether h e was B .W .’s biolog ical f ather. Kirkpatrick also advised D S S t hat h e w as moving to Elko, Nevada. Kirkpatrick d id not attend the protective c ustodyK I R K P A T R I C K V

. C T Y

. O F W A S H O E 7

hearing on J uly 18, 2008, but the cou r t ordered a paternity
test at his request. The test r evealed that K irkpatrick is indeed B .W .’s biolog ical father.

Kirkpatrick visited B .W

. tw ice in the F all of 2008, a nd

ex p ressed an interest in reunification a t a s ix -month
permanency hearing held in J anuary 2 009. After the hearing
, Kirkpatrick returned to Ren o a n d beg an visiting B .W

. more frequently

. H e continued to maintain h is visits, employ ment, and housing over the nex t y ear. I n J une 2009, B .W .’s foster family d etermined that they were no long er able to care for B .W

. and her half-sibling s, and the children w ere transferred
to a different foster home. Kirkpatrick became concerned

a b o u t B .W

. ’s care there, and a fter an incident during whi c h B .W

. suffered a larg e bruis e o n her forehead Kirkpatrick beg an a dvocating more strong ly that B. W

. should be placed with him. On December 31, 2009, B

. W

. was reunified with Kirkpatrick.

I n October 2009, K irkpatrick broug ht suit under 42 U.S. C. § 1983 ag ainst W a shoe County and DSS workers Ellen W ilcox
, L inda K ennedy
, and Amy Rey nolds—another supervisor—for removing B .W

. from W hi t w o r th without a warrant. I n t h e operative complaint—the Second Amended Complaint (“SAC”)—Kirkpatrick alleg ed one ca use of action
ag ainst the social-worker defendants and a not h e r cause o f action ag ainst the County
, b oth on behalf of “Plaintiff,” in the sing ular. The SAC also stated that “Plaintiff is the father a nd leg al g uardian of the minor child, [ B .W .] ,” a nd r e q uested damag es because “[ B .W

. ’s] constitutional rig ht to be with her parents was violated.”

The district court g r a n t e d the defendants’ motion for

s u m m ary judg ment. The district court first determined t h atK I R K P A T R I C K V

. C T Y

. O F W A S H O E 8

Kirkpatrick had asserted o nly c laims on h is own b ehalf under the F ourth an d Fourteenth Amendments. According ly
, the d i strict court found that Kirkpatrick had not demonstra t e d that the d efendants violated his constitutional rig h ts because only B

. W

. suffered a potential F ourth A mendment violation, and Kirkpatrick had not established parental rig hts as of the dat e o f the challeng ed seiz ure that could g ive rise to a F ourteenth Amendment claim. F inding that Kirkpatrick h ad failed to p rove a constitutional violation, the c o urt also entered judgm e nt in favor of W ashoe County

. This appeal followed.

D ISCUSSION

Section 1983 provides a r e medy f or violations of rig hts secured by the Constitution by persons acting under the color of state law. 42 U.S.C. § 1983. However
, the doctrine o f qualified immunity shields individual officers “from liability for civil damag es insofar a s their conduct [ did ] n o t violate clearly e stablished

. . . constitution a l rig h ts of which a reasonable p erson would h ave known.” Pearson v. Callahan
, 55 5 U

. S

. 2 23, 231 ( 2009) (quoting H arlow v. Fitzgerald
, 457 U.S. 800, 818 (1982)). Municip al i t ies and other local
g overnmental units are “pers o n s ” subject to suit under § 1983, but to pr e v a i l on a claim ag ainst a municipal entity for a constitutional violation, a plaintiff must also show that his or her injury is attributable “to official mu n i c i p al p olicy of some nature.” Monell v. Dep’t of Soc. Servs

. o f N.Y

. , 436 U.S. 658, 691 (1978).

Kirkpatrick’s claims ag ain st the social workers a nd W a shoe County

are addressed, in turn, below.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 9

I

.

W e apply a two-prong analy sis in qualified immunity
cases, under which summary judg m e nt is improper if,

res o l v ing a ll disputes of fact and credibility in favor o f the party asserting the injury
, ( 1) the facts adduced show that the officer’s conduct v i o lated a c onstitutional rig ht, and (2) that rig ht was “clearly established” at the time of the violation. Saucier v. Katz
, 533 U .S. 19 4
, 201 (2001). Thus, even if Kirkpatrick demonstrates that there is a question of fact as to whether the soc i a l workers violated his or B .W

. ’s constitutional rig hts, t h e w orkers are entitled to qualified immunity unless the l a w at the time of B .W .’s removal in 2008 clearly established the unco n s t itutionality of their conduct.

A.

Two provisions o f the Constitution protect the p arentchild relationship from unwanted interf e r ence by the state: the F ourth and the F o urteenth Amendme n t s

. 2 F irst, parents “have a well-elaborated constitutional rig ht to live” with their children that “is an essential liberty interest protected by the F ourteenth Amendment’s g uarantee that parents and children will not be separated by

the state without due process of law

ex c e pt in an emerg ency .” W allis v

. Spencer
, 202 F .3d 1126,

2 “ W h ere a p articu lar A m en d m en t pro v id es an ex p licit tex tu al so u rce

o f co n stitu

tio n al p ro t e c t io n ag ain st a particu lar so rt of g o v ern m en t b eh av io r, t

h at A m en d m en t, n o t th e m ore g en eralized n o tio n o f su b s tan tiv e d u e p ro ce ss, m

u st b e th e g u id e f

o r an aly zin g t

h ese claim s.” Co u nty o

f S a cra m en to v. Lewis
, 5 2 3 U .S. 8 3 3
, 8 4 2 (1 99 8 ). T h eref o re, b ecau se th e Fo u rth Am en dm en t p ro v id es a b u lw ark ag ain s t u n reaso n ab le seizu res, ch ild ren w

h o h av e b een “ seized ” m u st p u r s u e th eir claim s u n d er th e p u rv iew o f th at sp ecif

ic co n stitu

tio n al p ro v isio n

.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 10

1136 (9th Cir. 1999); accord Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs.
, 2 37 F .3d 1101, 11 0 7 ( 9th Cir. 2001); Ram v. Rubin
, 1 1 8 F. 3d 1306, 1310 (9th Cir. 1997). Second, the F ourth Amendment safeg uards children’s “rig ht

. . . to b e secure in their persons

. . . ag ainst u nreasonable

. . . seiz ures” without a warrant, U.S. Const. amend. I V, althoug h

we simi l a r ly recog niz e an ex c e ption to the warrant requir e m e nt where the ex ig encies of the situation are so compe l ling that a warrantless seiz ure is objectively reasonable under t h e F ourth Amendment, see Rogers v

. County of San Joaquin
, 487 F .3d 1288, 1294 (9th Cir. 2007). Ther ef o r e , w e have said that the tests under the F ourth a nd F ourteenth Amendment for when an official may remove a child from parental custody without a warrant are equivalent. W allis , 202 F .3d at 1137 n.8.

i.

W e consider f

i rst K irkpatrick’s F ourteenth A mendment claim ag ainst the DSS workers. The parental rig ht secured b y the F ourteenth Amendment “is not r eserved for parents with full leg al and p hy sical cust o d y

. ” James v. R o wlands
, 606 F .3d 646, 651 (9th Cir. 2 0 10); see a lso Burke v. Cty. of A l a meda
, 5 8 6 F .3d 725, 733 (9th Cir. 2009) (holding th at non-custodial par e n t s h ave a r educed liberty interest in the companionsh i p , care, custody
, and manag ement of their childre n )

. At the same time, however, “[ p] arental rig hts do
not spring full-blown from the biolog ical connection b etween parent and ch ild.” Lehr v. Robertson
, 463 U.S. 248, 260 (1983) ( quoting Caban v. Moh a mm e d
, 441 U.S. 380, 397 (19 79) (Stewart, J
., dissenting )) (emphasis omitted). J udicially e nforceable i n terests arising under the F ourteenth Amendment “require relationships more enduring ,” which reflect some assumption “ o f parental responsibility .” Id.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 11

(internal q

uotation marks omitted). I t is “[ w] hen an unwed father demonstrates a f

ull commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his c hild
, ” t h a t “his interest in personal contact with his child acquires substantia l p r otection under the due process clause.” Id. a t 261 (i nternal quotation marks and alteration omitted). Until then, a p erson with only poten t ial parental rig hts enjoy s a liberty interest in the companionship, care, a nd custody o f h is children that is “unambig uously lesser in
mag nitude.” J

a m es , 6 06 F .3d at 651 (quoting B rittain v

. Hansen , 451 F .3d 982, 992 (9th Cir. 2006)).

W hen the seiz ure of B .W

. occurred, Kirkpatrick’s d u e process rig hts concerning B .W

. were n eg lig ible. W hitworth informed Kirkpatrick that he mig ht b e the father just p rior to g iving birth to B .W
., but told him that there was “a possibility it could b e someone e l s e ’s as well.” Kirkpatrick acknowledg ed that he “did not know” whet h e r h e w as the father a nd that there were “possibly o ther candidates.” At the time, Kirkpatrick lived and worked several h ours away in Elko, an d a l t h oug h he was present for B .W .’s birth, he returned to Elko immediately ther e after. He did not attend the initial protective custody hear i n g held two day s a fter B .W

. was born. Kirkpatrick r emained unsure whether he was B .W .’s b iolog ical father until the results of the court-ordered
g enetic test confirmed his paternity

. B e fore then, Kirkpatrick had min i m al contact w ith W hitworth or B .W
., and no responsibi lity

—financial or otherwise—for either’s care. Consequently
, Kirkpatrick was not a parent to B

. W

. in her first few d a y s of life in the constitutional sense, and his substantive rig hts were not violated when the social workers placed her in protective custody without a warrant.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 12

ii.

This bring s us to B .W .’s F ourth Amendment c laim. The district court construed the SAC as stating claims onl y on behalf of Kirkpatrick. W e disag r ee. A s noted above, the SAC alleg ed that “[ B .W .’s] constitutional rig ht to be with her parents was violated.” L ater, Kirkpatrick also a lleg ed that “Defendants

. . . acted under color of state law to deprive Plaintiff, as described herein, of constitutionally protected rig hts, including
, but not limited to:

. . . (d) the r ig ht to be free from unreasonable searches and seiz u res;

. . . [ and] (f) the rig ht to be w ith h er parents.” Moreover, the defendants moved for summary judg ment on the merits of B .W .’s F ourth Amendment claim and have thus n ot been prejudiced by any ling uis t ic imprecision on Kirkpatrick’s part in drafting the SAC. According ly
, we conclude that Kirkpatrick sufficiently asserted a violation of B.W

. ’ s F ourt h Amendment rig hts to apprise the defendants that Kirkpatrick soug ht to ad j u d i cate her claims in addition to his own. The district court erred in
g ranting summary judg ment to the defendants on the g rounds that th e SAC did not provide adequate notice o f B .W

. ’s F ourth Amendment claim, and w e address this theory of relief and the concomitant issue of qualified immunity for the first
t ime on appeal. See Moreland v. Las Vegas Metro. P o li c e D e p’t
, 159 F .3d 365, 369 (9th Cir. 1 998) (“W e may affirm the district court’s j u dg ment on any g round finding support in the r ecord, even if it r e l i ed o n the wrong g round o r reasoning .”).

Under the F ourth Amendment, g overnment officials a re ordinarily required to obta i n prior judicial authoriz ation b e f o re removing a c hild from the custody of her pare n t

. However, officials may seiz e a child without a w arrant “if the information they possess at the time of the seiz u r e is such a sK I R K P A T R I C K V

. C T Y

. O F W A S H O E 13

provides reasonable ca use to believe that the child is in imminent dang er of serious b odily i n j u r y and that the scope of the intrusion is reasonably necessary

to a vert that specific injury .” W

allis , 202 F

. 3d at 1138.

I n R ogers v. County of San J oaquin
, we clar i fi ed that sei z i n g a c hild without a warrant is ex cusable only when officials “have reasonable cause to believe that the child is likely to ex perience serious b odily harm in the time that would be required to obtain a w a r r a n t .” 487 F

. 3d at 1295 (citing Mabe
, 2 37 F .3d at 1108 ) ( em p h asis added). Rogers concerned a social worker’s removal o f two children—ag e s three a nd five—from their home eig h teen day s a fter r eceiving

an anony mous report that t h e children display ed sig ns o f

severe neg lect. See Rogers
, 4 87 F .3d at 12 9 1

. The report alleg ed that the children were not toilet-trained, t h a t the parents locked the children in their rooms at nig ht, that the children were not receiving medical o r dental care, t h a t t he home was dirty and mag g ot-infested, an d t h a t the children had access to unsecured g uns. Id. Child Protective Services (“CPS”) classified the case as a non-emerg ency , one that only necessitated a response within ten d ay s. Id. Bu t af t e r eventually observing the children in the home and talking to their parents, a CPS worker immediate l y r emoved the children without seekinga warrant. Id. at 1292–93.

W e beg an in Rogers from the s ettled premise that social workers v iolate the F o urth Amendment by removing children absent a warr a nt or ex ig ent circumstances. Id. at 1294. Under that standard, we found that none of the alleg a tions o f
neg lect in Rogers were suff i c iently serious to justify the children’s r e m o v al. See id. at 1294–95. B ottle rot, malnourishment, a

nd disorderly home conditions do not present an imminent risk of serious bodily harm. Id

. at 1295.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 14

F urthermore, the “ official’s prior w i l l i n g ness to leave the children in t h e i r home militate[ d] ag ainst a finding o f

ex ig ency .” Id. W e observed th at “[ s] erious alleg ations o f abuse that h ave been investig ated and c orroborated usu ally
g ive rise to a ‘reasonable i n f e rence of imminent d a

ng er sufficient to justify t a king children into temporary custody ’ if they mig h t ag a in b e beaten or molested during the time it would take to g e t a warrant,” but c o ncluded that the chance of g r ave h arm befalling the R o ge rses’ children d u ring the “few hours” the social worker believed it would h a v e taken
to request a warrant w a s very low—so low as to “ not establish reasonable cause to believe that the children were in immediate dang e r.” Id. at 1294–95.

Rogers thus makes clear that w hen social wo r k e rs investig ating suspected abu s e or neg lect can reasonably obtain a w a rrant without sig nificantly risking serious bodily harm to th e c h i l d in question, the F ourth A mendment mandates that they do so. This conclusi o n f inds support in long -standing F ourth Amendment p recedent. See, e.g. , Mincey v. Arizona
, 437 U .S. 385, 394 (1978) ( f i n d i ng “ no

ex ig ent circum s t ances” supporting a warrantless search because “[ t] h ere was no indication that ev i d e n c e would be lost, d estroy ed, or removed during the time required to obtain

a search warrant”); Michigan v. Tyler
, 436 U.S. 499, 509 (1978) (“[ A] warrantless entry by criminal law enforcement officia l s may be leg al when there is compelling n eed for official action and no time to s e cure a warrant.”); United States v. Echegoyen
, 799 F .2d 1271, 1279 n.5 (9th Cir. 1 986) (“Ex ig ent c ircumstances necessarily imply that there is insufficient time to g et a warr a nt.”); United States v

. G ood
, 780 F .2d 773, 775 (9th Cir. 1986) (“Ex ig ent circums t a n c e s alone, h owever, a

re insufficient as the g o vernment must also show that a warrant could not h ave been obtained in time.”).K I R K P A T R I C K V

. C T Y

. O F W A S H O E 15

This rule is the log ical corollary to the Constitution’s
proscr i p t i o n o f warrantless seiz ures absent e x ig ent circums t ances; if the state had time to obtain a w arrant, it stands to r eason that there can be no “ex ig ent c ircumstance.”

According ly
, u nder Rogers
, the social workers here lacked cause to forg o a warrant if they had a de q u a t e t ime to pursue o ne throug h the ordinary judicial process without risking B.W .’s well-being

. W e hold that Kirkpatrick has

r a ised a g e nuine dispute as to whether B .W

. was in s u c h imminent dang er of serious bodily injury that no warrant was necessary

. W hitworth’s methamphetamine a buse did not pose a direct threat to B .W . while both mother and daug hter remained in the hospital, where nurses were supervising all o f B .W .’s medical needs. Nor did W hitworth’s unemploy ment

or lack of a s t a b l e p lace to live justify the social workers’ actions. “[ R] eliance on factors so c losely related to economic
status as a justification for removal w o u ld border on the unconstitutional.” Rogers
, 487 F .3d at 12 9 6. I n addition, althoug h B .W

. ’s ag e may have rendered her more v ulnerable
to the h a rms of neg lect if it were t o o cc ur, the undisputed evidence belies any

contention that B .W

. was in jeopardy of negl e c t i n the maternity ward of the hospital, which Kennedy —a DSS supervis or—considered to be a safe environment. W ilcox
, the social worker in charg e of B .W

. ’s
case, similarly confirmed that t h e r e w a s no dang er to B

. W. “[ b] etween the time the hold was put on the c hild in the hospital and the time just before [ she] left the hospital.”

According to Kennedy ’s deposition testimony
, the only potential “ imminent risk” facing B .W

. a t the time that W ilcox removed h er from Whitworth’s custody w as that B .W

. “could die if she g oes home w ith a mother who’s hig h on drug s and forg ets to feed her.” Bu t W hitworth was recovering from aK I R K P A T R I C K V

. C T Y

. O F W A S H O E 16

cesarean section and h a d demonstrated no resistance to the social worke r s ’ i n

t e rvention: W hitworth even volunteered her

case worker’s contact information to hospital staff a nd remained in the hospital a t the time o f the protective c ustody hearing the day after B

. W .’s removal. A t DSS’s request, the hospital also put a ho l d on B .W

. According ly
, the unlikely possibility that W hitworth mig ht unex pectedly abscond with B .W

. d id not justify dispensing with the w arrant requirement. See Roger

s , 487 F

. 3d at 1295 (“So remote a risk d oes not establish reasonable cause to believe that the children were in immediate dang er.”). A ration a l j ury presented with this evidence c ould find that B .W

. was under no immediate threat

o f serious phy sical injury
, and, therefore, that the social workers v iolated her F o urth Amendment rig hts by removing her from her mother under non-ex ig ent circumstances.

B

.

W e therefore turn to the second p rong of the qu al i fi e d immunity analy sis, which r equires Kirkp atrick and B .W

. to demonstrate that this rig ht was “cle ar l y e stablished.” See Kennedy v

. City of Ridgefield
, 4 39 F .3d 1055, 1065 (9th Cir. 2006).

“To d etermine w hether a r ig ht is clearly est ablished, the reviewing court must consider w hether a reasonable [ o fficial]

w o u l d recog niz e that his or her c onduct violate[ d] that righ t under the circu m stances faced, and in lig ht of the law that

ex isted at that time.” Id

. W hile “[ s] pecific binding p recedent is not required to show that a rig h t i s clearly established,” Calabretta v

. Floyd
, 18 9 F. 3d 808, 8 13 (9th Cir. 1 999) (citation omitted), “ ex isting precedent mu st have placed the statutory or constitutional question bey ond debate,” Ashcroft

v. al-Kidd
, 563 U.S. 731, 741 ( 2011). “Our task is toK I R K P A T R I C K V

. C T Y

. O F W A S H O E 17

determine whether the preex isting law provided the defenda nts with ‘fair warning ’ that their conduct was unlawful.” Kennedy
, 439 F .3d at 1065 (quoting Fl o r e s v

. Morgan H

ill Unified Sch. Dist.
, 324 F .3d 1130, 1137 (9th Cir. 2003)). “This ex acting s t a ndard g ives g overnment officials b r e a t hing r oom to make r easonable but mistaken judg ments by protect[ ing ] all but the plainly incompetent o r those w ho knowing ly v iolate the law.” City & Cty. of San Francisco v

. Sheehan
, 135 S. Ct. 1765, 1 7 7 4 ( 2 0 15) (internal quotation marks omitted).

I n J u ly 2 008 it was well-settled that a child c o uld not be removed without prior judicial authoriz ation absent evidence that the child wa s i n i m minent dang er of serious bodily i njury

. See Rogers
, 487 F .3d at 1 297 (recog niz ing tha t t h e law has b e en clearly established in the Ninth Circu i t s i nce Mabe
, if not earlier); see also Ma b e , 2 37 F .3d a t 1106; W allis
, 202 F .3d at 1 138; Ram
, 118 F

. 3 d a t 1310. B ut the Supreme Court has “repeatedly told courts— a n d the Ninth Circuit in p articular—not to d efine clearly established law at

a hig h level of g enerality .” al-Kidd
, 563 U.S. a t 742 (citation omitted). “Qualified immunity is n o immunity at all if ‘clearly established’ law can simply be defined as the rig ht to be free from unreasonable searches and seiz u res.” Sheehan
, 135 S. Ct. at 1776.

I n 2 008
, it was not bey ond debate that the confluence o f fa c t o r s set forth above would not support a finding o f

ex ig ency

. N o Sup reme Court precedent defines when a

wa r r a n t is required to seiz e a child under e x ig ent circumstances. A n d a lthoug h the Supreme Court has assumed that circuit precedent can be a dispositive source o f clearly established law, see id. ; Carroll v. Carman
, 135 S. Ct. 348, 350 (2014); Reichle v

. Howards
, 132 S. Ct. 2088, 2094K I R K P A T R I C K V

. C T Y

. O F W A S H O E 18

(2012), none of the cases fro m t his court ex plain when removing a

n infant f rom a p arent’s c u stody at a hospital to prevent neg lect, wi thout a w arrant, c rosses the line o f reasonableness and v iolates the F o urth Amendment. See Rogers
, 4 87 F .3d at 1291–93 ( finding that malnourishm e nt and bottle rot were n ot “imminent dang ers” to two toddlers); Mabe , 237 F .3d at 1108 (deny ing summary judg ment where social worker seiz e d a 14-y e ar-old g irl wh o accused her stepfather of sex ual abuse with o u t a w arrant); W allis
, 202 F .3d at 1138 (holding that there was a g enui n e f a ctual dispute over the “imminency ” of the dang er to a child based

on alleg ations that the child’s father intended to ritually sacrifice him to Satan the following week). I n fact, v ery few

cases from an y c ircuit have addressed what constitutes

ex ig ent circumstances in a case that remotely resembles this

one. Cf. Kia P. v. M

cIntyre
, 235 F .3d 7 49, 7 61–63 ( 2 d C ir. 2000) (holding that a hospital’s retention of a newborn w ho tested positive for methadone at birth was re a s onable under the Fo u r th Amendment). No matter how carefully a reasonable social worker had read our c ase law, she c ould not have known that s eiz ing B .W

. would violate federal constitutional law. W ithout that fair no t i c e , the social workers in this case are entitled to qualified immunity

.

I I

.

Our inquiry
, h owever, is not over. Summary judg ment on B .W .’s F ourth Amendment claim ag ainst W ashoe County is still inappropriate if we can trace t h e social workers’ unconstit u t i o n al removal to a sy stemic failure to train DSS officers to obtain a wa r r a nt before seiz ing a child to investig ate abuse or neg lect.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 19

To prevail on a claim ag ainst a m unicipal entity for a constitution a l violation, a plaintiff must show that an official’s action that caused the plaintiff’s injury was pursuant “to official municipal p o l i cy of some nature.” M onell
, 4 3 6 U

. S. at 691. To d o so, a plaintiff must g o bey on d t h e respondeat superior theory of liability and demonstr a t e that the alleg ed constit u tional deprivation was the product o f a policy or custom of the local g overnmental unit. Connick v. Thompson
, 563 U.S. 51, 60 (2 0 1 1). Under this standard, a municipal defendant can be held liable b e cause of a failure to properl y train its e mploy ees only if the failure reflects a

“ c o n scious” choice by the g overnment. B d. of the Ct y. Comm’rs v. Brown
, 520 U.S. 397, 4 07 (1997); City of Canton

v. Harris
, 489 U.S. 378, 389 (1989). I n other words, the
g overnment’s omission must amount to a “policy ” o f deliberate indifference to constitutional r i gh ts. Harris
, 489 U.S

. at 389. A plaintiff can satisfy this r equirement b y showing that “the need f or more or d ifferent t r a i ning is so obvious, and the inadequacy so likely to r esult in the violation of constitutional rig hts, that the poli c y m akers

. . . can reasonably b e said to have b een deliberately indifferent to the need.” Id . at 390.

“‘[ D] e libera te indifference’ is a string ent standard o f fault, requiring proof t h at a municipal actor disreg arded a known or o bvious consequence o f his action

. ” Connick
, 563 U.S. at 61 (quoting B rown , 520 U.S. at 4 10). Satisfy ing this standard requires proof that the municipality had “actual

or constructive notice that a particular omission in their training prog ram ” w ill “cause[ ] [ municipal] employ ees to violate citiz ens’ constitutional rig hts.” Id. (quoting Brown
, 520 U.S. at 410). I n turn, to demonstr a t e t h at the municipality was on notice of a const i t u t i onally sig nificant
g ap in its training
, it is “ordinarily necessary ” for a p laintiffK I R K P A T R I C K V

. C T Y

. O F W A S H O E 20

to demonstrate a “pattern o f similar constitutional violations by untrained employ e e s.” Id. at 62.

Contrary to the dissent’s sug g estion, evidence of a pattern of constitutional violations is n ot a lway s required to succeed

on a Monel l c l a i m

. S

ee Dissent Op. at 36–37, 38. The Supreme Court has reaffirmed that “in a narrow rang e o f circumstances” a p articular “ showing of ‘obviousness’ can substitute for the pattern o f violations o rdinarily necessary to establish municipal c ulpability .” Connick
, 563 U.S. at 63. S u c h a s i t u a t i o n i s “ r a r e ”

— “ t h e u n c o n s t i t u t i o n a l
consequences of failing to train” must be “patently obvious” and the violation of a protected rig ht must be a “hig hly predictable consequence” o f the decision not to train. I d. F o r

ex a mple, the Supreme Court has opined that a sing le incident of ex cessive force, coupled with ev i d e nce that a c ity h ad
neg lected to train its armed o fficers on the con s t i t u t ional limitations on using force ag ainst f l ee i n g f elons, mig ht establish that the city manifested deliberate indiffer e n ce in training law enforcement. See Harris
, 4 89 U.S. at 390 n.10.

A.

I n support o f his claim that W ashoe County maintained an unconsti t u t i o n a l p r a ctice o f seiz ing children without a warrant in non-ex ig e n t c i r c u

m s t a n c e s , K i rkpatrick adduced testimony from W ilcox and Kennedy that they were wholly unfamiliar with the process for obtaining a warrant before taking c ustody of a child. W ilcox started w orking at DSS in J une of 2007, a y ear befo r e she handled B .W .’s case. Yet, W ilcox testified that s he never received training on how to o btain a warrant d u r i n g the two y ears that she was employ ed by W ash o e C o u n t y , or that she was instructed that social workers must obtain a w arrant in n on-emerg e ncy situations. And, althoug hK I R K P A T R I C K V

. C T Y

. O F W A S H O E 21

W ilcox stated that she was trained on “imminent” dang er, she could not provide detail o n what she had been taug ht. Under questioning
, W ilcox ad m i t t e d that a hy pothetical child in B .W .’s circumstances was not in imminent dang er:

Q : B u t [ a child is] not g oing to b e returned to his father f

or four day s

. I s that imminent dang er?

A : No.

W ilcox also testified that she w o u ld likely remove such a child any w ay , and without a warrant:

Q : So what do y ou do for that child when the mother insists on returning him to a dang erous situation and the father insists on g etting him in that dang erous situation, n o questions asked, y ou have already determined a nd
every body ag r ees it’s a dang e r ?

A : Then we remove the child.

Q : You don’t g et a warrant?

A : No.

Q : The child y ou admitted is not in imminent dang er.

A : No. W e don’t g et a warrant.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 22

Q : B u t would y ou remove the child even thoug h the dang e r may be three or four day s away ?

A : Yes.

W ilcox attributed her answer to W ashoe County ’s unofficial custom or protocol:

Q : L et me ask y ou an obvious question. I f the child w asn’t in dang e r in the hospital and was there for several d ay s, why didn’t y o u s e e k a warrant before y ou r emoved t he child f rom mom? I s it because y ou didn’t know y ou h ad to? You weren’t trained on that?

A : I t wasn’t the p rotocol of W ashoe County

. No one told me to g et a warrant and they didn’t train me how t o go about g etting a warrant.

Q : Or did they even tell y o u y o u c ould g et a warrant?

A : No. They

didn’t.

Kennedy —who supervised b etween five and seven s ocial workers, including W ilcox —confir med that it was “not in [ DSS’s] g eneral p ra c t ice” to obtain a warrant before removing a child:

Q : B a ck in J uly of ’08, did y o u understand that there was a distinction between r emovingK I R K P A T R I C K V

. C T Y

. O F W A S H O E 23

a chi l d with a court warrant and without a court warrant?

A

. No. I don’t believe a t that point we ever had court warrants . . . .

Q

. So y our best recollection is that as o f J uly of ’ 0 8, W ashoe County Child Protective Services did not obtain court warrants prior to the removal of a child in any circumstances?

A : I w ouldn’t say in n o circumstances. B ut not in our g eneral practice. No. There could be—we had a sked f

or w arrants sometimes when there was like a suspected k idnapping o r something like that where we had some prior knowledg e, let’s say

. B ut g enerally speaking
, we did not. I don’t recall e v e r ge tting a warrant to g o out with one o f my investig a tors to g o out and pick up a child unless it was a special circumstance.

S h e elaborated that in cases like B .W .’s, she mig ht h a v e obtained a warrant “in a rare instance,” b ut she did n ot recall ever doing

so:

Q : You mentioned that y o u have a recollection o f obtainin g—of seeking warrants in situations like kidnapping s and thing s like that.

. . . W hat I ’m more interested in is the case where y ou’ve g otten a complaint or a report o f s o m e sort of child neg lect that trig g ers an investig ation which leads to determining that a c hild needs to be removed. Okay ? That’s the c a s e I ’ m more interested in. Under thoseK I R K P A T R I C K V

. C T Y

. O F W A S H O E 24

kind of circumstances, d o y ou have any knowledg e o f

ever obtaining a warrant to r emove a child u n der those ty pe of g eneral circumstances?

A : I do not recollect doing that. No.

Q : S o i t would be safe to say that in y o u r

career with W a shoe County Child Protective Services y ou’re not aware o f ever obtaining a warrant to remove a child from a parent?

A : I don’t recollect ever doing that. However, that is not to say that it could have occurred in

a ra r e i n stance that I ’m not just recalling

. I t

was not a g eneral practice ever to g et a warrant.

W h ile discussing the process of removing a child from her parent with o u t a warrant, Kennedy noted that “W ashoe County has all kinds of policies and p r o c e dures for
every thing ,” and that the “policy [ ] was never to g et w arrants” when removing

children:

Q : You stated when a b a b y or a child is kidnapped that w ould be a situation where
y ou would g et a warrant.

A : Generally speaking
, y es. That happens
very rarely

.
Q : A warrant to r emove the child from the kidnap p e r or a w arrant to arrest the kidnapper?K I R K P A T R I C K V

. C T Y

. O F W A S H O E 25

A : A warran t t o r emove the child. W e have nothing to do arresting people.

Q : So if it’s a kidnapper y ou g et a warrant to remove it but if it’s a parent y ou don’t?

A : That’s our p olicy
, was never to g et warrants when we remove children when I worked as a supervisor.

Q : There w as a policy to not g et w arrants o r there was no policy ?

A : There was no policy related to warrants.

B

.

The County does not dispute that, at the time of B .W

. ’s seiz ure, it had no policy or procedures for obtaining warrants b e f o re removing children from parental custody
, or for training its social workers to recog niz e that a warrant may be required. The lack of a formal policy is n o t n ecessarily unconstitutional if DSS removes children only in cases in which the removal is justified b y ex ig e n t circumstances. Cf. Trevino v

. Gates
, 99 F .3 d 9 1 1
, 9 18 (9th Cir. 1996) (finding evidence th a t a city had indemnified an o fficer in an

ex c e ssive force case was not fa cially unconstitutional a nd thus insufficient for municipal liability ). N o r does a sing le unconstitutional incident, without more, establi s h that a municipality fai l e d t o provide proper training

. City of Oklahoma City v. Tuttle
, 4 71 U.S. 808, 821–24 (198 5 ); c f

. M iranda v. City of Cornelius
, 429 F

. 3d 858, 869 (9t h C i r. 2005) (holding that the city incurred no liability under § 1983 b a sed solely on a constitutional v iolation sustained by t h eK I R K P A T R I C K V

. C T Y

. O F W A S H O E 26

plaintiff where the v iolation occurred in contravention of the city ’s official policy

)

. H owever, the evidence that the social workers violated B .W

. ’s F ourth Amendment rig h ts, in conjunction with W ilcox a nd Kennedy ’ s testimony that the County had no policy of o btaining warrants b efore removing children from parental custody and that it was social workers’
reg ular practice t o r e move children reg ardless of the r isk o f imminent bodily harm, raises more than a spectre o f deliberate indifference by W ashoe County

. 3 T h is is therefore

a case in w hich the municipality ’s “inadequacy [ is] so likely
t o result in the violation of constitutional rig hts” that a jur y could reasonably f

i n d § 1 983 liability without needing a pattern o f violations to find the County culpable. See Harris
, 489 U.S. a t 390 (holding that the city could be held liable for failing to train polic e officers in determining whether detainees needed medical c are because of the likelihood that, absent proper training
, the o fficers would defau l t o n their constitutional oblig ations). Given t h e work performed b y DSS social workers, the need for DSS to train its employ ees

on the constitutional limitations of separating parents a nd children is “so obvious” that its failure to do so i s “ p r o p erly

. . . characteriz ed as ‘deliberate indiff e r e n c e ’ to [ the]

3 T h e dissen t n o tes t

h at b oth K en n ed y

an d W ilco x testif

i ed th at th ey

w ere t rain ed to rem o v e a ch ild on ly in th e p resen ce o f im m i n en t dan g er,

w h ich i n d i c a t e s t h a t th e Co u n ty train s its so cial w ork ers pu rsu an t to a law f u l p o licy f

o r rem o vi n g ch ild ren f

ro m p aren tal cu sto d y

. S

ee Dissen t Op

. at 37

. Bu t W ilco x also tes t i fi e d t h at sh e co u ld n o t recall h er

“ i m m in en t” d an g er train i n g an d ad m itted th at, d esp ite an y su ch train in g , sh e w ou ld lik ely ef

f ectu ate a w arran tless rem o v al o f a ch ild w h o w as n o t in im m in en t d an g er. Fu

rth er, W ilco x testif

ied th at sh e w as n ev er train ed

o n h o w to o b tain a w arran t an d Ken n ed y

co n f irm ed th at it w as g en erally

n o t th e Co u n ty ’ s p ro to co l to o b t ain a w arran t p r i o r to rem o v in g a ch ild

. T h is testim o n y

is su f f icien t to raise a g en u in e issu e of m aterial f

act as to

w h eth er th e Co u n ty m ain t ain ed a po licy o f u n co n stitu tio n ally seizin g ch ild ren in n o n

- ex ig en t circu m stan ces.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 27

constitutional rig hts” of Washoe County families. See id. at 390 & n.10. According ly
, a question of material fact ex ists

r e ga r d i n g w h e t h e r W a s h o e C o u n t y m ai n t a i n e d a n unconstitutional, unoff

i c ial policy

. Summary judg ment on this claim is inappropriate.

There is also a question of fact for the jury as to whether these cus toms and practices had a “direct causal link” to the deprivation of B .W .’s F ourth Amendment rig h ts. S e e id. at 389 (“[ A] municipality can be liable u nder § 1983 only where its policies are the ‘moving force [ behind] the constitutional violation.’” (quoting Monell
, 436 U.S. at 694)). A reasonable j ury could c onclude that DSS’s policy of conduc t i n g warrantless seiz ures o f children in non-ex ig ent circumstances

was the moving force behind the w arrantless removal of B

. W. from W hitworth’s custody

. S e e W allis
, 202 F .3d at 1143 (concluding that material issues of fact p r e cluded summary judg ment reg arding the ex istence of a municipal custom o r practice of taking children from their homes without adequate safeg uards based on testimony from three detectives who h ad seiz ed a child from his home). Cons e quently
, the County is not entitled to summary

judg ment.

CONCLUSION

F or the foreg oing reasons, we affirm the dist ri c t court’s
g rant of summary judgm e n t to the defendants on Kirkpatrick’s claim that they violated his F ourteenth Amendment rig h ts b y seiz ing B .W

. without due process because he had no e n forceable p arental rig hts at the time o f her removal. W e also affir m t h e d istrict c ourt’s g rant o f
summary judg ment to the social w orkers on B .W

. ’s F ou r t h Amendment claim; althoug h the social workers should have obtained a warrant, their consti t u tional oblig ation to do soK I R K P A T R I C K V

. C T Y

. O F W A S H O E 28

was not clearly established, and they are therefore entitled to qualified immunity on this claim. H o w e v er, we reverse summary judg ment an d remand on B .W .’s claim ag ainst W a shoe County b ecause Kirkpatrick has presented sufficient evidence to raise a g enuine issue o f material fact r eg a rd i n g whether the County maintained a policy of unconstitutionally seiz ing children in non-ex ig ent circumstances.

AF F IRMED i n part; REVERSED in part a nd REMANDED

. Each party shall bear their own costs on appeal.

CHRI STEN, C i r c uit J u dg e, w ith w hom Circuit J udg e HURW I TZ joins, concurring :

I ag ree with the r esults reached by the majority : Kirkpatrick’s claim was c orrectly dismissed; a reason able jury could have found the w a r r antless seiz ure of B

. W. violated her constitutional rig hts but the individua l social workers were entitled to qualified immunity ; and the County

was not entitled to summary judg ment on the claim t h a t its policies violated B .W

. ’s F o urth Amendment rig hts. I write separately to a ddress, briefly
, what the court d escribes as “the unl i k ely possibility that W hitworth mig h t unex pectedly abscond with B .W .” Maj. Op. at 16.

I n Rogers v. County of San Joaqu i n , we unequivocally

ex p lained that social workers are required to obtain a warrant before seiz ing a chil d unless there is “ reasonable c ause to believe that the c hild is likely to ex p e ri e nce serious bodily harm in the time that would b e required to obtain a w arrant.” 487 F .3d 1288, 1294 (9th Cir. 2007). Here, the socialK I R K P A T R I C K V

. C T Y

. O F W A S H O E 29

workers’ testimony makes plain that they g ave no thoug ht to obtaining a warrant, apparently because the County made no effort t o train its social workers on this requirement. The dissent a rg ues that B .W .’s constitutional r ig hts w ere not violated because the County correctly trained its workers t o remove children only

in ex ig ent circumstances. See Dissent Op. at 37. B ut t h e r e c o r d tells us nothing about h o w long it mig ht have taken to obtain a warrant and a l most nothing about how likely it was that W h i t w o r t h w ould leave the hospital before a warrant could be obtained. F or ex ample, we cannot tell whether the social workers’ convers a t i ons with W h itworth caused c oncern that she mig ht leave. There were unresolved questions of fact a t the summary judg ment stag e , but it was known that the informal “hold” DSS r equested did
not actually prevent W h itworth from leaving the hospital with B .W
., or g iving another adult permission to remove the baby

.

I f the disputed facts are construed in the lig ht most favorable to B .W
., it must be assumed that it would have been possible for the social workers to obta in a warrant without delay

. On the other hand, it only takes minutes to w a lk out o f

a hospital. Even if the risk that Whitworth would leave with B .W

. wa s s m a ll, I cannot set a side the possibility that W h itworth mig ht have done so simply b e c a u se she was recovering from a cesare an s e c t i on. See Maj. Op. a t 15–16. Social workers are entitled to rely on their ex perience, and at least o n e s o cial worker testified that she had seen patients recovering from cesarean sections leave the hospital

unex p e ctedly

. Compounding the problem, W hitworth had a poor track record o f stay ing in touch with the social workers and they knew they h ad no w a y t o r e a ch her if she left the hospital.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 30

B o iled down, it seems to me t h at the individual social workers correctly determined that th i s n ewborn f aced a catastrophic risk if her mother removed her from the hospital, (she “could die if she g oes h ome with a mother who’s hig h on drug s and forg ets to feed her”), and it would only have taken

a few minutes for someone to leave w ith B .W

. T he social

w orkers’ error, if any , w as in peg g ing the likeliho o d t h at B .W .’s mother w ould leave with her. The s o cial workers
may h a v e jumped the g un, but how much risk were they required to tolerate with the life of a n e wborn baby at stake? I conclude the social workers reasonably refused to g amble that W hitworth would make the sound decision to leave B

. W. in the hospital. Thus, the applicable standards entitle them to qualified immunity

.

F R I E DL AND, Circuit J udg e , with w hom THOMAS, Chief J udg e , joins, concurring in part and dissenting in part:

I join the majority ’s opinion as to municipal liability but dissent from its affirmance o f s u m m ary judg ment on the claim ag ainst the individual defendants. An official is liable, and not entitled to qualifi ed immunity
, if her “conduct violated a clearly estab l i s h ed constitutional rig h t.” Pearson

v. Callahan
, 555 U.S. 223, 232 (2009). The con stitutional rule that B .W

. could not be seiz e d w ithout a warrant absent imminent dang er was clearly established, and it was equally

c l e a r that there w as no imminent d ang er to B .W

. O n t h e F ourth Amendment claim a g ainst the social workers, I would therefore hold that summary judg ment to Defendants shouldK I R K P A T R I C K V

. C T Y

. O F W A S H O E 31

be reversed and Plain t i f f’s cross-motion for summary judg ment should be g ranted. 1

The majority correctly r e c o g niz es that the rule of law at issue here was clearly es t a b l i s h ed at the time: “ [ A] child could not be removed with o u t p rior judicial authoriz ation abs e n t ev idence that the child w as in imminent dang er o f serious bodily

injury .” Maj. Op. at 17 (citing Rogers v. Cty. of San Joaquin
, 487 F .3d 128 8
, 1 297 (9th Cir. 2007)); see also M abe v. San Bernardino Cty., D ep’t of Pub. Soc. Servs.
, 237 F

. 3d 1101, 1106 (9th Cir. 2001) (“Government officials

are r equired to obtain prior judicial a uthoriz ation before intruding o n a parent’s custody of her child unless they
possess information a t the time of the seiz ure that establishes ‘reasonable cause to believe that the c hild is in imminent dang er of serious bodily injury and t h a t the scope o f the intrusion is r easonably necessary to avert that specific injury .’” (quoting W

allis v. Spencer
, 2 0 2 F .3d 1126, 1138 (9th Cir. 2000))). N evertheless, the majority holds t h a t the social workers are entitled to qualified i m munity because it

was debatable wheth er B .W

. was in imminent dang e r. I disag ree.

The only concl u s i o n to be drawn from the very record evidence the majority discusses is that no reasonable social worker could have believed B .W

. w as in imminent dang er o f serious b odily injury

. See S aucier v. Katz
, 533 U.S. 1 94, 207 (2 0 0 1) (“F o urth Amendment issues [ ] are evaluated for objective r e asonableness based upon t h e i nformation the officers h ad when the conduct occurred.”). As the majority correctly points out, W h itworth’s methamphetamine abuse

1 P lain tif f f iled a cro ss- m o tio n f

or s u m m ary j u d g m en t an d h as arg u ed

o n ap p eal th at it sh o u ld h av e b een g ran ted

.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 32

could not have reasonably posed a threat to B .W

. while both

were in the hospital because, even thoug h hospital staff noted that W hitworth was apparently not taking adequate care o f B .W
., nurses were atten d i n g t o the newborn’s needs. Maj. Op. at 15. 2 N or was there any reasonable risk that Whitworth would a bscond with B .W

. I n the majority ’s o w n words, “W h itworth was recovering from a cesarean section, and h ad demonstrated no prior resistance to the so c i al workers’ intervention[

. ]

. . . [ S] he remained in the hospital at the time of the protective custody h earing the d a y a fter B .W

. ’s removal [
, and] the h ospital [ h ad] also put a hold on B .W

. ” Maj. O p. a t 1 5–16. “ According l y , ” t h e majority correctly concludes, t h er e was only an “unlikely possibility that W h itworth mig ht u n ex p e c tedly abscond with B .W

. ” Id. at 20. “So remote a risk does not establish reasonable cause to believe that the child[ ] [ was] in immediate dang er.” R o gers , 487 F .3d at 1295.

I ndeed, as the majority correctly recogn i z e s , the social workers ex pressly admitted that they d id not believe B

. W.

was in imminent dang er at the time they seiz ed her. S e e Maj. Op. at 15 (describing Defendant Kennedy ’s testimony that the hospital’s maternity w ar d is a safe environment a nd Defendant W ilcox ’s testimony that there was no d ang er to B .W . while the hospital’s hold was in place). I am aware of

no co n trary testimony that would create a triable issue as to whether B

. W

. was i n imminent dang er. On this record, it is

2 W h itw o rth ’ s u n em

plo y m en t an d lack o f st a b l e h o u sin g co u ld n o t j u stif y th e w arran tless seizu re b ecau s e, ag ain as th e m aj o rity ap tly states,

“ [r]elian ce on f

acto rs so clo sely related to eco n o m ic statu s as a j u stif i catio n f o r rem ov al w o u ld bo rd er on th e u n co n stitu tio n al.” Maj

. Op

. at 1 5 (q u o tin g Ro g ers , 4 87 F.3 d at 1 2 9 6 ). No r d i d Wh itw o r t h ’ s

u n em plo y m en t an d a lack o f s t a b l e h o u sin g p o se an im m in en t d an g er to B .W . w h i l e b o th w ere in th e h o sp ital.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 33

thus clear that B .W

. was not in imminent dang er. T he social workers ther e f

ore violated B .W .’s clearly established rig hts in failing to obtain a warrant before seiz ing her.

Althoug h it is true that no binding authority has addressed this ex act factual scenario, such specificity is not required for

a constitutional o b l i gation to be “clearly established.” See Hope v. P elzer
, 5 36 U.S. 730, 739 ( 2 002) ( s t a t i n g t h at for a constitutional rig ht to be clearly established, the “very action in question” need n ot have “previously b een held unlawful,”

as long as “in the lig ht of pre-ex isting law the u n l a w fulness [ is] apparent” (quoting Anderson v. Creighton
, 483 U .S. 635, 640 ( 1987))). I t w as c learly e stablished that a child could not be seiz ed without a warrant absent imminent d a ng er, and the inescapable c onclusion to b e drawn from this record is that no objective social worker cou l d have believed—and indeed, these social workers did not believe

— t hat B .W

. was in imminent dang er. I t follows, therefore, that the social workers violated B .W

. ’ s clearly establi s hed constitutional rig hts.

I n my view, qualified immunity should be denied a nd

sum m ary judg ment entered for Plaintiff on the F ourth Amendment claim. I dissent from the majority ’s contra ry conclusion.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 34

KOZ I NSKI
, Circuit J udg e, with w hom Circui t J u d g e s O’SCANNL AI

N, RAW L I

N SON a nd B EA join, and Circuit J udg e WATF ORD joins with respect to Part 2, dissenting in part:

F or the r easons ex plained in my panel dissent, I a g ree that the social workers here are entitled to qualified immunity a nd join that part of the opinion. B ut I cannot ag ree that the social workers committed a constitutional v iolation, nor t hat the County can be liable for a policy of unconstitutional conduct under Monell

. I therefore dissent from those portions of the opinion.

1. There Was No Constitutional Violation

The majority acknowledg es that W h it w o r t h w a s a d rug addict who used meth t h roug hout her preg nancy

— transferring it to her baby —and h a d no job or s t a b l e living situation. Op. at 5, 15. And my colleag u e s r ecog niz e that “B .W .’s ag e may have rendered her more vul n e r a b l e to the harms of neg lect if it were to occur.” I d

. a t 15. They even quote K ennedy testify ing that B .W

. “ could d i e i f she g oes home with a mother who’s hig h on drug s and forg ets to feed her.” Id. at 15.

The majority dismisses this ex ig ency because Whitworth remained in the h o s pital recovering from her c-section “and had demonstrated no resistanc e t o the social workers’ intervention: W hitworth even volunteered her case worker’s
contact information to hospital staff.” Id. at 1 5

– 16. I disag ree with both prong s of the majority ’s reasoning

.

That W hit w orth was r e c overing from surg ery c ertainly doesn’t mean she couldn’t leave the hospital on short notice.K I R K P A T R I C K V

. C T Y

. O F W A S H O E 35

T h e social workers here testified that moms like W hitwort h “don’t alway s stay f

or a few day s a t the hospital, sometimes they just leave” even after a c-section, as J udg e Christen
notes. See C h risten, J
., concurring
, at 29. I t may have been foolish for W hitworth to do so, but someone who abuses her b o d y a nd baby by using meth throug hout her preg nancy can hardly be counted on to calculate dang er ration a l l y o r avoid putting herself and her baby at risk.

W e may evaluate the risks differently with the benefit of hindsig ht, but that is not the test. T h e t e st is whether wellinformed social w orkers on the scene c ould r easonably b e l i ev e that leaving the baby in the mother’s control while they soug ht a warrant wo u l d p u t the baby at some r isk o f serious bodily injury or death. See Ryburn v. Huff
, 132 S. Ct. 987, 992 (2012) (per curiam); Ashcroft v. al-Kidd
, 5 6 3 U.S. 731, 735–36, 7 43–44 (2011). I d on’t r e a d the majority a s say ing that there was no risk of harm to the baby
, only that the risk was small. As J udg e Christen aptly notes, “the social workers reasonably refused to g a mble that W hitworth would make the sound decision to leave B .W

. in the hospital.” Christen, J
., concurring
, at 30. W e are not entitled to secondg uess that judg ment.

Th a t the mother was cooperative was no g uarantee that she wouldn’t chang e her mind. Meth a ddicts can be volatile. B ecause “it only takes minutes to walk o ut of a hospital,” id.
at 29, and put a baby ’ s life in d ang er, any time the social workers took to ge t a w arrant would be too much. My colleag ues in the majority are willing to risk a baby ’s life on the presumed ration a l behavior of a woman who treats her

own h e alth and that o f h er baby with contempt. I can’t ag r ee that the social worke r s were unreasonable in taking a different view. I n d eed, they reasonably could have taken theK I R K P A T R I C K V

. C T Y

. O F W A S H O E 36

mother’s cooperation as c onse n t , which also would have obviated the need for a warrant.

The test u nder the F ourth Amendment is reasonableness. The Supreme Court h as “instructed that reasonableness must be judg ed from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vis i o n of hindsig ht.” Ryburn
, 132 S. Ct. at 992 (internal quotat i o n m a r ks a nd citation omitted). “J udg ed from the proper perspective of a reasonable officer forced to mak e a s p lit-second decision in
response to a rapidly unfolding chain of events ,” id.
, the social workers here acted reasonably in the d i fficult circumstances present e d t o t h em. Had they left to g et a warrant, and had the mother d eparted the hos p i t a l w ith the baby
, they would have had t h e baby ’s life on their conscience. I cannot b lame them f or r efus ing to take that small—but far from trivial—risk.

2. The County Is Not Liable Under Monell

The majority compounds its e r ror by holding that the County can b e liable for B .W

. ’s supposedly unconstitutional removal: “Summary ju d g m e n t o n B .W .’s F ourth A mendment claim ag a inst W ashoe County is still inappropriate if we can trace the social w o r k ers’ unconstitutional removal to a sy stemic failure to train DSS o f f i c e rs to obtain a warrant before seiz ing a child to investig ate abuse or neg lect.” Op. at 18. B ut the majority n ever poin ts to any evidence of a

s y s t e mic problem. The only evidence we h a ve is the

ex p erience o f th e two social workers who were n amed a s defendants in this case. There is no evidence that the training these social w orkers recei v e d was ty pical. The plaintiffs presented no evidence at all as to th e t r a ining a nd g uidance
g iven to the rest o f the County ’ s social workers, or even h owK I R K P A T R I C K V

. C T Y

. O F W A S H O E 37

m a n y of them there were. The ex perience of these t w o individuals c o u ld be aty

pical; two data p oints aren’t enoug h to establish a pattern or policy

.

The majority frames t h i s case as one where the unconstitutional conseque n c e s of failing to train were so “obvious” that the v iolation o f a rig ht was “hig hly predictable.” Id. at 20 ( q uoting Connick v

. Thompson
, 563 U.S. 5 1, 64 (2011)); see also id. at 26–27. B ut the social workers testified that the County trained them on the law a nd in s t ructed them to remove a child o nly if there were an imminent risk of harm. So there was training and there was

a standard: “imminent risk to the w ell being o f that child” o r “imminent dang er.” According to the evidence, this meant “a child’s life w as in dang er”; that a “ c h ild would suffer a serious injury or even possibly death if something wasn’t done.” T hat’s the constitutional standard: I f there are e x ig ent circumstances, no warrant is require d

. I t’s not “hig hly
p r e d ictable” that the County ’s training would lead to unconstitutional results.

The majority recog n iz es that “ [ t] he lack of a f o r mal policy is not necessarily u nconstitutional i f DSS removes children only in cases in w h i c h t h e removal is justified b y

ex ig ent circumstances.” Id. at 25. The majority g ets around that c onclusion b y finding “it w a s s ocial workers’ reg ular practice to remove children r eg ardless of the risk of imminent bodily harm.” Id. at 26. As is often the c a s e with appellate fact-finding
, this is a fig ment.

The majority points to no evidence of a “reg ular p ractice”

or even a sing le other instance of children being r e moved when there was no imminent risk of harm. I nstead, they rely

o n W ilcox ’s testimony that “she was trained on ‘immin en t ’K I R K P A T R I C K V

. C T Y

. O F W A S H O E 38

dang er,” but couldn’t remember the specifics of that training
at a deposition three y e a

rs later. Id. at 20–21, 2 6 n

. 3

. So

w h a t ? The County is hardly at fault because employ ees a r e unable to g i v e d etails of their training sessions y ears later. T h e majority also u ses a deposition hy pothetical—whet h e r W ilcox would g et a warrant to r emove a child who will return in four day s to a molesting father—as proof that the County ’s training was insufficient b ecause it didn’ t teach the social workers to g et a w a r r a n t

. Id. at 2 1–22, 26 n .3. The hy pothetical is totally inapp o s i t e here, where even a few minutes would be enoug h for W h itworth to leave the hospital with B .W

. and put her life at risk. See supra p

. 3 5

. The County cannot be h eld liable under Monell based o n what an employ e e s a y s she w ould have done in a non-analog ous, hy pothetical situation.

B u t even if the majority ’s illusory finding were supported b y the record, it wouldn’t be enoug h. “A pattern of s i m i l a r constitutional violations by u ntrained employ ees is ‘ordinarily n ecessary ’ to d emonstrate deliberate indifference for purposes of failure to train.” C o n nick
, 563 U.S. at 62 (e m p hasis added) (citation o mitted). Here, there is no evidenc e t h at the County unconstitutionally removed a ny other child b ecause it failed to train social workers on how to g et w arrants. The major i t y derives a pattern from a sing le data point.

* * *

The majority g ets it almost rig h t. I dissent because, when life or death are concerned, “almost rig ht” isn’t.